JXLT and Secretary, Department of Social Services (Social services second review)

[2020] AATA 2326

JXLT and Secretary, Department of Social Services (Social services second review) [2020] AATA 2326 (16 July 2020)

Division:GENERAL DIVISION

File Number(s):      2019/8170

Re:JXLT  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms L Rieper, Member

Date:16 July 2020

Place:Hobart

The Tribunal affirms the decision under review.

..............................[sgd]..........................................

Ms L Rieper, Member

SOCIAL SECURITY - disability support pension – rejection – qualification – physical or psychiatric impairments – whether the impairments are fully diagnosed, treated and stabilised – whether the impairments attract at least 20 points under the impairment tables – insufficient medical and treatment evidence – decision under review affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Ms L Rieper, Member

16 July 2020

1. The Applicant seeks review of a decision made by the Social Security and Child Support Division of this Tribunal on 27 November 2019.[1]

   [1] T2, T documents, p 5.

2. The issue to be determined is whether the Applicant was qualified for disability support pension (DSP) following a claim made by her on 26 September 2018.

3. A hearing was held on 1 June 2020 by telephone. The Applicant appeared on her own behalf, and the Respondent was represented by Mr Nacion of Sparke Helmore.

   QUALIFICATION FOR DISABILITY SUPPORT PENSION

4. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) sets out the criteria for qualification for payment of DSP:

   94(1) A person is qualified for disability support pension if:

   (a)The person has a physical, intellectual or psychiatric impairment; and

   (b)The person’s impairment is of 20 points or more under the Impairment Tables; and

   (c)One of the following applies:

   (i)     The person has a continuing inability to work;…

5. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”).

6. The Impairment Tables set out the rules for assessing an impairment and assigning a rating.  An impairment rating can only be given to a medical condition that is permanent.  Permanent means:

   (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b)the condition has been fully treated; and

   (c)the condition has been fully stabilised; and

   (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   (see paragraph 6(4) of the Impairment Tables).

7. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it is necessary to consider:

   (a)whether there is corroborating evidence of the condition; and

   (b)what treatment or rehabilitation has occurred in relation to the condition; and

   (c)whether treatment is continuing or is planned in the next 2 years.

   (see paragraph 6(5) of the Impairment Tables). 

8. Fully stabilised means:

   (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

   (b)the person has not undertaken reasonable treatment for the condition and:

   (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

   (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

   (see paragraph 6(6) of the Impairment Tables).

9. The Respondent conceded, and the Tribunal agrees, that the Applicant has medical conditions that cause impairment and, therefore, she satisfied paragraph 94(1)(a) of the Act during the claim period. The qualification period is the 13-week period from the date of her claim. That means the qualification period commenced on 26 September 2018 and ended on 25 December 2018.

10. It follows that the issues the Tribunal must determine are whether, during the qualification period, the Applicant had:

    (a)An impairment rating of 20 points or more under the Impairment Tables; and, if so

    (b)A continuing inability to work as defined in section 94(2) of the Act.

    CONSIDERATION

11. In her claim for DSP, the Applicant was asked to the list the disabilities or medical conditions which significantly affected her ability to work.[2]  She listed:

    ·COPD – shortness of breath with minimal exertion, chronic fatigue, cognitive impairment

    ·Ischemic heart disease – chest pain with/without exertion, shortness of breath, chronic fatigue, anxiety

    ·Osteoarthritis and spinal stenosis – multiple joint pain, reduced range of movement, foot drop when walking

    ·Major depression/anxiety – inability to self-care, poor hygiene, lack of appetite, feelings of worthlessness, suicidal thoughts and psychotic episodes

    [2] T34, T documents, p 174.

12. Since the claim was submitted, a considerable amount of medical evidence has been provided and there has been some refining of the medical conditions which are pressed by the Applicant.  The Tribunal has considered the medical conditions using the descriptions set out by the Respondent in its Statement of Facts, Issues and Contentions.

    Mental health condition

13. It is a requirement of the Impairment Tables that the diagnosis of a mental health condition be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).  In addition, the self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment (see Table 5 of the Impairment Tables).

14. The Applicant has consulted with two psychiatrists.  On 30 August 2016 Dr Johl, a consultant psychiatrist, reported that he had seen the Applicant who was concerned that she had bipolar disorder.[3]  He reported that his impression was that she did not have Bipolar Disorder I but she did have “a few features suggestive of Bipolar Disorder II”.  He arranged a follow up appointment to clarify some of her history and to complete her assessment, however she did not attend.  During her evidence to the Tribunal the Applicant confirmed that she did not return to see Dr Johl.

    [3] T21, T documents, pp 130-131.

15. The Applicant saw Dr Black, consultant psychiatrist on two occasions in about August 2019.  A copy of his notes was provided to the Applicant’s general practitioner and is before the Tribunal[4].  He noted that the history she had provided “fairly clearly described periods of depression” and he went on to state that the Applicant believed that the previous psychiatrist “felt that a diagnosis of BPAS 2 was reasonable.”  Dr Black did not provide any diagnosis of his own in the notes although he did prescribe medication consistent with a diagnosis of bipolar disorder or epilepsy.  The Tribunal notes that there is no suggestion in the evidence that the Applicant suffers epilepsy.

    [4] T59, T documents, pp 245-247.

16. In a report dated 18 October 2019, the Applicant’s general practitioner, Dr Clarke opined that the reports from Dr Johl and Dr Black were consistent with a diagnosis of Bipolar Disorder and that she had an impairment rating of 20 points under Table 5.[5]

    [5] T61, T documents, pp 250-252.

17. The Applicant’s evidence was that she is certain that she has Bipolar Disorder II and that other family members have been diagnosed with it.

18. Given the requirements of Table 5 of the Impairment Tables there are two problems with the evidence before the Tribunal:

    (a)Diagnosis - Dr Johl did not complete his diagnosis when he saw the Applicant on the one occasion in 2016.  He expressly states in his report that he had not completed his assessment and he did not give a definitive diagnosis of Bipolar Disorder II.  Whilst the medication prescribed by Dr Black in 2019 does suggest he thought the Applicant had some form of bipolar disorder, it is not expressly diagnosed in his notes.  Dr Clarke is neither a psychiatrist nor a clinical psychologist and his diagnosis did not distinguish between Bipolar Disorder I or Bipolar Disorder II and therefore cannot be accepted.  The Tribunal therefore does not have the evidence required by the Impairment Tables to conclude that the Applicant’s mental health condition has been fully diagnosed.

    (b)Treatment – as noted above it is necessary that any impairment be fully treated within the qualification period before an impairment rating can be assigned.  The evidence does not make it entirely clear when Dr Black first saw the Applicant, but the second consultation appears to have been on 13 August 2019 and his notes were provided to Dr Clarke, on 19 August 2019.  It is clear from his notes that he was still adjusting the types and quantities of medication he thought might assist the Applicant with her mental health condition.  In his notes he said that on his second consultation the Applicant had not had any trouble with lamotrigine 25mg and so he suggested to Dr Clarke that she increase the dosage to 100-200mg over the next four to six weeks.  This was some 12 months after the commencement of the qualification period and so, the Tribunal cannot be satisfied that the Applicant had undertaken all reasonable treatment for the condition during the qualification period such that it was unlikely to result in significant functional improvement to a level enabling her to undertake work in the following two years.

19. It follows that the Tribunal is unable to assign an impairment rating under Table 5 of the Impairment Tables.

    Memory loss and cognitive deficit

20. On 9 June 2015 Dr Somarathnan, general practitioner, referred the Applicant to Dr Razay, the Director of the Dementia Research Centre at the Launceston General Hospital.[6]  He noted that the Applicant had a fear of dementia as her mother had developed it at an early age and she was having difficulty remembering things and events in her life.

    [6] T14, T documents, pp 121-122.

21. On 10 August 2015, having seen the Applicant, Dr Razay referred her to the Department of Psychiatry within the Launceston General Hospital.[7]  He noted that she had given a four to five-year history of short-term memory problems like forgetting names, where she put things, recent conversations and what she had done recently.  He noted that on examination she was depressed, she was orientated for time and space, her immediate recall was 3/3 and her mini mental state examination score was 30/30.  He also noted that an MRI of the brain in 2010 showed no significant abnormality.  Dr Razay’s opinion was that the Applicant had mild cognitive impairment most likely due to stress and depression and he sought an assessment and advice on further management.  He noted that he had also recommended that the Applicant reduce her alcohol intake.

    [7] T16, T documents, p 124.

22. During the hearing the Applicant’s explanation of the results of Dr Razay’s examination was that she knew what he was going to ask because of her nursing training.  She also described him as dismissive and said the consultation only lasted for 10 minutes.

23. Apparently at Dr Razay’s request, a CT scan of the brain was undertaken on 12 August 2015.[8]  It was reported as normal.

    [8] T15, T documents, p 123.

24. As noted above, The Applicant saw Dr Johl, a psychiatrist, in 2016.  His consultation seems to have been unrelated to Dr Razay’s referral, but he did note in his report that the Applicant was essentially complaining of severe memory problems, frequent forgetfulness and that she did not feel as smart as she used to be.  Also as noted above, Dr Johl sought a second consultation to complete his assessment, but it did not take place.

25. The Tribunal notes that Dr Black’s clinical notes make no reference to the Applicant reporting memory loss in her consultations with him but as with Dr Johl he did note that the Applicant’s drinking was problematic.

26. In a report dated 18 October 2019 Dr Clarke refers to the Applicant’s memory/cognitive deficit and states:

    In 2011 [the Applicant] was diagnosed with a pheochromocytoma and experienced high BP for an extended period of time.  This has caused nerve damage in the brain and resulted in permanent brain damage affecting her memory and cognitive function.  This has caused her significant issues with ADL’s. [The Applicant] was referred to physio/OT/Community Care to her in her day to day living however cost issues prevented her seeing a physio and OT and she was rejected for Community Care due to having an adult son living at home.

    I consider [the Applicant] to be fully diagnosed with memory/cognitive deficit and no further treatment is planned or required.  No significant improvement is expected with or without further treatment.

    This is a permanent condition and I will be reviewing [the Applicant] periodically for medical maintenance.

    I consider an impairment rating of 20 in table 7 of impairment tables reasonable as she meets all examples therein.[9]

    [9] T61, T documents, pp 250-252.

27. Table 7 is the appropriate table to use to assess permanent conditions resulting in functional impairment related to neurological or cognitive function.  The Table requires that the diagnosis of the condition be made by an appropriately qualified medical practitioner and that there be corroborating evidence of the impairment.  Examples given include a report from a specialist such as a neurologist, rehabilitation physician, psychiatrist or neuropsychologist, results of diagnostic tests such as an MRI or CT scan or the results of cognitive function assessments.  The types of conditions given as examples are acquired brain injury, stroke (cerebrovascular accident (CVA)), conditions resulting in dementia, tumour in the brain, some neurodegenerative disorders, chronic pain).  To satisfy the criteria for a rating of 20 points when applying Table 7 of the Impairment Tables, there must be severe functional impact resulting from a neurological or cognitive condition that the person needs frequent (and at least once a day) assistance and supervision and has severe difficulties in at least one of a number of categories which include memory (for example being unable to remember routines, regular tasks and instructions, having difficulty recalling events of the past few days or getting lost easily in unfamiliar places).

28. There is no evidence before the Tribunal as to where Dr Clarke obtained the diagnosis of permanent brain damage affecting the Applicant’s memory and cognitive function.  It is not supported by the results of any diagnostic tests in evidence before the Tribunal.  The most recent evidence of any neurological examinations of any type are the description Dr Razay provides of his examination in his report of 10 August 2015 and the “normal” CT scan result that was reported to him on 12 August 2015.  During cross-examination the Applicant conceded that she had not consulted a neurologist.

29. Therefore, the most recent specialist diagnosis is Dr Razay’s opinion that the Applicant had a mild cognitive impairment most likely due to stress and depression, but he sought the input of a psychiatrist.  The psychiatrists who have seen the Applicant since that time have either not completed their assessment (Dr Johl) or apparently been given no history of memory problems (Dr Black).

30. The Tribunal is therefore not satisfied that a diagnosis has been completed by an appropriately qualified medical practitioner and therefore the Tribunal cannot go on to consider an impairment rating under Table 7.

    Spinal condition and osteoarthritis

31. The Respondent concedes that the Applicant’s spinal condition and osteoarthritis were fully diagnosed within the qualification period but not that they were fully treated or fully stabilised.

32. A CT of the lumbosacral spine, undertaken on 10 March 2015, was reported as showing circumferential disc bulging at L2/3 level but no nerve root compression and a posterior disc protrusion at L5/S1 level with nerve root impingement on the left L5 nerve root.[10]

    [10] T12, T documents, pp 118-119.

33. An x-ray of the lumbar spine and chest taken on 14 June 2016 was reported as showing some mid lumbar degenerative disc disease.[11]

    [11] T19, T documents, p 127.

34. On 24 December 2018 Dr Clarke provided what he described as a health summary in respect of the Applicant outlining her medical history and current conditions.[12]  In respect of her back he described the medical conditions as:

    (a)degenerative disc disease-L2, 3 and L5 with nerve root impingement & L2-L4 disc osteophyte complex; and

    (b)osteoarthritis

    He described the treatments for both conditions as including NSAIDs and analgesia and in respect of the degenerative disc disease he also noted physiotherapy, “OT referral” and community care referral.

    [12] T46, T documents, pp 212-217.

35. In his report dated 18 October 2019 Dr Clarke stated, in respect of the Applicant’s degenerative lumbar disc disease/osteoarthritis, that treatment was medication and gentle exercise only as she was not suitable for surgery due to her co-morbidities.[13]  He said that no further treatment was planned or required, and no significant improvement was expected with or without further treatment.  He opined that the Applicant met the criteria for a rating of 10 using Table 4 of the Impairment Tables as she met “all examples therein”.

    [13] T61, T documents, pp 250-252.

36. The reasons for decision from the previous Tribunal hearing record that the Applicant had given evidence that she could not afford physiotherapy or occupational therapy and that when she advised Dr Clarke, of this he gave her a regime of home exercises to improve her core strength but that she had not undertaken those exercises.  The Applicant’s evidence on this occasion was similar.  She said that she did not do the core exercises because they hurt her back, but she did do some gentle walking and stretching and used heat and ice packs on occasion.  In an undated letter to the Tribunal, which was tendered at the hearing, the Applicant said that she did not do the core exercises often because they hurt and also because she often forgot to do them before she got out of bed which is what had been recommended.  Under cross-examination she conceded that she had not attended a physiotherapist, occupational therapist, pain management course or seen an orthopaedic surgeon or neurosurgeon.  Her evidence was that the only treatment which would fix or treat her condition was surgery and that was not an option because she is a high-risk patient.

37. Whilst the Applicant disagrees with the treatment which has been recommended to her by her general practitioner and it is clear that she has strong views on what treatment is useful, the Impairment Tables require that all reasonable treatments have been undertaken by the end of the qualification period, at the latest, and for the condition to be fully stabilised. 

38. Although the Applicant has a nursing qualification, the Tribunal must prefer the opinion of Dr Clarke, who she described as having a qualification in sports medicine, as to what constitutes reasonable treatment.  Whilst he was prepared to opine that the condition was permanent in his report of 18 October 2019, which was well after the qualification period, he seems to have been under the impression that the Applicant had carried through with the exercises he had recommended.  As at the qualification period, the treatment which appears to have been recommended, but not undertaken, was treatment by a physiotherapist and/or occupational therapist.  The Applicant was cross-examined about the cost of such treatment and denied that a gap payment was around $9, instead saying it was around $40.  In any event, her evidence was that even if it was $9 she could not afford it because paying for her smoking addiction, of one packet per day, came first.

1. In the Tribunal’s view, physiotherapy was reasonable treatment which the Applicant should have undertaken.  However even if that is not correct, the exercises recommended by Dr Clarke came at no cost and if the Applicant was having difficulties undertaking them, she could have discussed that with Dr Clarke.  Clearly, she did not, because he reported subsequently that she was undertaking gentle exercise and made no reference to any difficulties.  The Tribunal is therefore satisfied that the Applicant had not undertaken all reasonable treatment during the qualification period.

   GORD and irritable bowel syndrome

2. The Respondent accepts that the conditions of GORD and irritable bowel syndrome were fully diagnosed within the qualification period on the basis of Dr Clarke’s 24 December 2018 report.  However, the Respondent does not concede that the conditions were fully treated or fully stabilised. 

3. In his health summary of 24 December 2018 Dr Clarke stated that treatment for the conditions consisted of ongoing diet management, a dietician referral and ongoing medication in the form of antacids, aperients and gastrostop.[14]

   [14] T46, T documents, pp 212-217.

4. The Applicant admits that she has not complied with her doctor’s recommendations regarding her diet and has not seen a dietician; both because of the cost and because the waiting list was too long.  Her evidence was that she is on newstart allowance and can only afford to eat one meal per day which is usually pasta with a pasta sauce.  Contrary to her evidence in respect of the cost of physiotherapy treatment, her evidence was that the costs associated with her addictions were not the cause of her dietary issues because she does not buy the alcohol or marijuana which she consumes.  She did not mention cigarettes at this point in her evidence.  Under cross-examination the Applicant said she had also looked into meals on wheels but could not afford it and she did not think seeing a dietician was “worth it” because she could not sustain whatever was recommended.

5. The Applicant did not provide the Tribunal with any evidence as to how she spends her newstart allowance, although as noted above she did concede at one point in her evidence that she purchases a packet of cigarettes every day.  There being no evidence that the Applicant is in such severe financial hardship that she cannot afford to buy food, beyond the Applicant’s bare assertions, the Tribunal is not prepared to accept that Dr Clarke’s recommendations regarding her diet is not reasonable treatment.  The Tribunal therefore cannot go on and consider an impairment rating.

   Drug and alcohol dependency

6. In his health summary of 24 December 2018 Dr Clarke stated that the Applicant had drug and alcohol dependence that dated back 37 years.[15]  He reported that she had engaged in daily cannabis use for the past 37 years and drank five or more standard drinks daily or every couple of days.  He described the treatment as ongoing counselling and noted that the Applicant was likely to continue to use cannabis and alcohol as she had stated it helped with her pain but that she was actively trying to cut back on intake.

   [15] Ibid.

7. The Applicant’s evidence was that she had been drinking and smoking marijuana all of her adult life.  She said that she underwent three years of counselling regarding a number of issues in about 2004 including her addictions but it did not really help.  Since then her only treatment has been counselling by her general practitioner.  She said she has a dislike of drug and alcohol counselling after her son had a bad experience.  She also firmly believes that the alcohol and marijuana use help with her pain management.  In cross-examination the Applicant confirmed that her use of alcohol and marijuana is for pain relief.   There was also some evidence that the cigarettes the Applicant consumes are combined with the cannabis.  Whilst at one point she claimed to have reduced her cigarette intake to five cigarettes per day, most of the evidence, including a specialist report submitted after the hearing, suggests her cigarette consumption remains much closer to a packet per day.

8. The Tribunal notes that the introduction to Table 6, which is the relevant table for assessing functional impairments relating to alcohol, drug and other substance use, states that it applies to people who have current, continuing substance use disorders and those in active treatment.  Nevertheless, the requirements that the impairment be fully treated and fully stabilised still apply. 

9. The Applicant’s evidence was essentially that she chooses to continue to use substantial quantities of alcohol and cannabis as a treatment for pain.  At one point she said that she consumes 25 cones per day.  This is despite recommendations from a number of specialists, including psychiatrists and a cardiologist that she reduce her intake of alcohol and/or marijuana. 

10. The Tribunal is therefore unable to conclude that the Applicant’s substance usage is an impairment which has been fully treated and fully stabilised.  That means an impairment rating cannot be considered under Table 6.

    Cardiac conditions

11. The evidence shows that the Applicant was diagnosed with pheochromocytoma by Dr David, cardiologist, in mid-2011 after a coronary angiogram had suggested she had Takotsubo cardiomyopathy.  He reported back to Dr Clarke on 15 February 2012 that the Applicant had undergone pheochromocytoma surgery in November and had had an uneventful recovery.[16]  She had no cardiac symptoms and an echocardiogram on 30 July 2011 had been normal.  He reported that no further cardiac investigations were planned.

    [16] T10, T documents, p 116.

12. The Applicant underwent an ECG on 21 February 2018.  It was reported as normal.[17]

    [17] T24, T documents, p 134.

13. On 3 July 2018 The Applicant presented to the emergency department of the Launceston General Hospital with chest pain.  She was diagnosed with angina and discharged home on the following day.[18]

    [18] T27, T documents, p 137.

14. The Applicant underwent an echocardiogram on 20 July 2018.  The conclusions were reported as “non-dilated L V cavity with reasonably good systolic function. Right heart appears within limits. No significant valve abnormalities.”[19]

    [19] T30, T documents, p 140.

15. In his health summary of 24 December 2018 Dr Clarke gave a diagnosis of “cardiac syndrome X/angina” with an onset date of 2011.[20]  The symptoms were said to include acute episodes of chest pain with/without exertion.  He noted that treatment was ongoing including medications in the forms of GTN spray and aspirin and psychotherapy in the form of mindfulness and breathing exercises.  He also noted “cardiomyopathy-Takotsubo” which he said required ongoing monitoring.

    [20] T 46, T documents, pp 212-217.

16. Dr David provided a report dated 7 August 2019 in which he summarised the Applicant’s history including a diagnosis of Takotsubo cardiomyopathy with normal coronary arteries nine years earlier, the successful pheochromocytoma surgery and the admission in July 2018.[21]  He also reported that the Applicant had been reassessed at the specialist clinic of the Launceston General Hospital on 13 February 2019 with a complaint of occasional palpitations.  She had high cholesterol and was diagnosed with obstructive lung disease.  She was diagnosed with a recommendation to quit smoking and to seek medical attention if there was a recurrence of palpitations.

    [21] T56, T documents, p 240.

17. There is nothing in the evidence before the Tribunal to indicate that the episode of Takotsubo cardiomyopathy which occurred in 2011 was anything other than a temporary condition which has long since resolved.  There is also no evidence to suggest that any other cardiac condition which the Applicant may be suffering was fully diagnosed, fully treated and fully stabilised by the end of the qualification period.  Whilst there is evidence that she suffered a bout of angina in 2018 and heart palpitations in early 2019, Dr David has not diagnosed any form of coronary artery disease or any other existing cardiac condition.  The Tribunal is therefore unable to consider any impairment rating under Table 1, which is generally used to assess functional impairments arising out of cardiac conditions.

    COPD conditions

18. A CT scan of the Applicant’s chest undertaken on 4 July 2018 was reported as showing a generalised pattern of centrilobular groundglass nodularity in both lungs that, given the history of smoking, could be related to respiratory bronchiolitis.[22]  It was noted that a respiratory consultation would be helpful.

    [22] T26, T documents, p 136.

19. The results of a pulmonary function test undertaken on 21 November 2018 were reported as showing mild obstruction and significant bronchodilation.[23]

    [23] T42, T documents, p 197.

20. In his health summary of 24 December 2018 Dr Clarke diagnosed COPD and said that treatment in the form of puffers, respiratory/pulmonary physiotherapy and smoking cessation therapy was ongoing.[24]

    [24] T 46, T documents, pp 212-217.

21. After the hearing had concluded the Applicant produced a copy of a report from Associate Professor Parkes, a respiratory physician and specialist in intensive care, dated 15 May 2020.  The Respondent consented to the Tribunal taking the report into evidence and made some short, written submissions in response.

22. Associate Professor Parkes reported to Dr Clarke that he had reviewed the Applicant via a telehealth consultation.  He said that she very clearly had severe COPD, related to smoking onset at an early age and continuing at around 20 cigarettes per day.  He thought that her medication was a combination inhaler and said that was appropriate medication.  He noted that clearly her symptoms would continue and progress as she continues to smoke.  His view was that she needed psychological support and had arranged a further review by telephone to provide “a little bit more support, talk about smoking cessation and setting some goals.”

23. The report of Associate Professor Parkes confirms that treatment aimed at the cessation of smoking continues to be recommended as a treatment for the Applicant’s COPD.  The Respondent submitted that the absence of evidence supporting that the Applicant had undertaken the recommended rehabilitation or smoking cessation therapy recommended by Dr Clarke and given that specialist intervention by a respiratory physician was recommended within two years of the qualification period, the Tribunal could not be satisfied that the COPD was permanent.

24. The Tribunal accepts the Respondent’s submissions and accepts that the treatments, as recommended by Dr Clarke are reasonable treatments for COPD which could result in significant functional improvement.  The Tribunal is therefore unable to consider an impairment rating in respect of The Applicant’s COPD.

    CONCLUSIONS

25. The Tribunal has been unable to assign an impairment rating in respect of any of the Applicant’s medical conditions, in most instances because she had not undertaken the treatments recommended by her general practitioner and relevant specialists within the qualification period.

26. The result is that the Applicant does not have an impairment, or combination of impairments, attracting a rating of at least 20 points under the Impairment Tables during the qualification period and consequently she does not satisfy paragraph 94(1)(b) of the Act.

27. It follows that it is not necessary for the Tribunal to go on and to consider whether or not during the qualification period the Applicant had a continuing inability to work within the meaning of paragraph 94(1)(c) of the Act.

28. As the Applicant was not qualified for DSP within the qualification period Tribunal must affirm the decision under review.  It is, of course open to the Applicant to file a further claim for DSP if further medical evidence emerges regarding the treatment, stabilisation and permanence of her impairments.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Ms Lynette Rieper, Member.

......................[sgd]...............................

Associate

Dated: 16 July 2020

Date of hearing:   1 June 2020

Applicant:   By Phone

Solicitor for the Respondent:             Mr P Nacion